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Protecting Stateless Refugees in the United States

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Protecting Stateless Refugees in the United States Washington and Lee University School of Law Washington & Lee University School of Law Scholarly Commons Scholarly Articles Faculty Scholarship 2020 Protecting Stateless Refugees in the United States David Baluarte Washington and Lee University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlufac Part of the Human Rights Law Commons, Immigration Law Commons, International Humanitarian Law Commons, and the International Law Commons Recommended Citation David Baluarte, Protecting Stateless Refugees in the United States, Brown Journal of World Affairs, Spring/Summer 2020, at 1. This Article is brought to you for free and open access by the Faculty Scholarship at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Scholarly Articles by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Protecting Stateless Refugees in the United States David Baluarte Miliyon is a stateless, failed asylum seeker residing in the United States. He initially sought refugee protection after he fled Ethiopia, where he had faced serious abuse because of his Eritrean ethnicity. Immigration authorities denied him asylum after concluding that the Ethiopian government’s deportation of his Eritrean father, the seizure of his family’s land and business, and the detention and torture of Miliyon himself constituted a property dispute not protected 1 under U.S. refugee law. Miliyon fought this denial of protection over the next decade through various appeals processes but ultimately failed. At that point, he applied for a passport at the Ethiopian embassy in Washington, D.C. and resigned himself to return home and face whatever fate awaited him. Consular officials, however, refused to issue him a passport. Despite never having set foot in Eritrea or having any other connection to the country, Miliyon was told that he was Eritrean, not Ethiopian. He was informed that he had no right to return David Baluarte is Associate Dean for Academic Affairs and an Associate Clinical Professor of Law at Washington and Lee University School of Law, where he is the Founding Director of the Immigrant Rights Clinic (W&L IRC). He is a recognized scholar and advocate in the areas of statelessness, refugees, human rights, and migration, having published a number of articles on these topics, led research initia- tives for the UN High Commissioner for Refugees (UNHCR), the Open Society Foundations, and the Equal Rights Trust on statelessness in the Americas, directed UNHCR projects to identify and protect stateless persons in the United States and the Bahamas, and coordinated international human rights litiga- tion against the Dominican Republic to defend the right to nationality in that country. He is a Steering Committee member of the Americas Network for Nationality and Statelessness and an Advisory Council member for the Institute on Statelessness and Inclusion. At the W&L IRC, Baluarte represents stateless clients, like Miliyon Ethiopis, in their claims for protection in the United States and teaches immigration, citizenship and refugee law. Copyright © 2020 by the Brown Journal of World Affairs Spring/Summer 2020 • volume xxvi, issue ii David Baluarte to Ethiopia, his country of birth and the only place he had ever lived. This led the United Nations High Commissioner for Refugees (UNHCR) to declare Miliyon stateless. As a victim of discriminatory denationalization, Miliyon tried to renew his application for refugee protection. Notwithstanding the fact that Miliyon had endured this persecutory treatment, U.S. authorities once again denied his claim. Miliyon’s failure to secure refugee protection in the United States reveals a series of deficiencies in U.S. asylum law and procedure as it applies to stateless persons. These deficiencies are in part related to the incomplete incorporation of international frameworks for the protection of refugees and stateless persons by the United States. Specifically, while the United States implemented its international refugee law obligations in the 1980 Refugee Act, it has neither signed the subsequent international treaties for the protection of stateless per- sons nor enacted any domestic laws to fill this gap. As a result, U.S. law does not provide a definition of statelessness, a procedure for the determination of statelessness, or a framework for the protection of stateless persons. While U.S. asylum protection is available to stateless persons, the gap in the law with regard to statelessness leads many asylum adjudicators to misunderstand the unique circumstances that contribute to the persecution of stateless refugees. Moreover, 2 stateless persons are subject to the same removal procedures as migrants with a nationality, and they are ordered to be removed after an asylum denial despite the fact that they have nowhere else in the world to go. This article proposes a more complete and nuanced consideration of state- lessness in asylum adjudication procedures in the United States and the possibility of reopening previously denied asylum claims like Miliyon’s for this purpose. The article proceeds in four parts, beginning with a discussion of statelessness in the United States. Next, the article describes the international protection frameworks for both refugees and stateless persons and identifies important points of intersection between these frameworks. Then the article argues that discriminatory denationalization that renders a person stateless triggers refugee protection, thereby making victims of such deprivation eligible for asylum in the United States. The article concludes that stateless refugees like Miliyon should be able to reopen their previously denied asylum claims to make these arguments and pursue protection. STATELESSNESS IN THE UNITED STATES A stateless person is one who is not a national of any country under the the brown journal of world affairs Protecting Stateless Refugees in the United States operation of its laws.1 While this is an individualized legal determination that can be technical in nature, the lived experience of a stateless person is not at all a technical matter. Untethered from the international order of nation-states, stateless persons have no home anywhere in the world. This is particularly important to understand as the tenor of global discourse about unauthorized migration has become harsh and unsympathetic. As might be expected, stateless persons without authorization to reside in the United States live in the shadows, avoiding contact with the criminal justice system and immigration authorities. If stateless migrants like Miliyon do come into contact with the immigration system, they are treated in the same manner as any other migrant; if they are found removable, they are mandatorily detained. Because they cannot ac- tually be removed from As might be expected, stateless persons the country, as no other without authorization to reside in the nation will accept them, United States live in the shadows, avoid- they may face prolonged detention, but they will ing contact with the criminal justice eventually be released system and immigration authorities. to a life on parole. Sepa- rated permanently from their families abroad, they live their lives under the 3 constant scrutiny of immigration officials with the discretion to grant or deny their requests to work legally, and the authority to re-detain them.2 The stateless legal limbo in the United States is a lonely and precarious existence. The Center for Migration Studies (CMS), a nonpartisan, New York-based think tank, recently conducted a study that estimated and profiled the population of people in the United States who may be stateless, with eye-opening results.3 CMS recognized at the outset that U.S. law does not define statelessness and that the U.S. government does not make any specific effort to determine who is stateless or count those who fall under this category. Through a rigorous mixed method of quantitative and qualitative analysis, CMS developed a comprehensive set of profiles of migrants who are potentially stateless, or potentially at risk of statelessness, and provided an estimate of that population in the United States. CMS intentionally qualified the terms “stateless” and “at risk of statelessness” with the term potentially in order to capture all people of a national, ethnic, or religious background who could be stateless. CMS then used large, government- maintained databases to estimate the population of people potentially of concern. The contributions of this important work are at least threefold. First, the comprehensive nature of the study, by first collecting the many profiles of global Spring/Summer 2020 • volume xxvi, issue ii David Baluarte statelessness and then matching them with existing databases of foreign-born persons in the United States, is quite stunning. With the increasing global aware- ness of statelessness in recent years, numerous marginalized ethnic and religious groups are now understood to have precarious nationality rights. For example, Syrian Kurds forced to flee the protracted conflict in Syria risk statelessness, as do Bahamians of Haitian ancestry in the Caribbean nation just 50 miles off the coast of Florida. While an exact count of the U.S. stateless population is impos- sible, matching these profiles with the U.S. foreign-born population provides a much clearer sense of the likely contours
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